The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Passed by Congress June 4, 1919. Ratified August 18, 1920.
Another Proposed Amendment: Women’s Equal Rights:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
This history of the Equal Rights Amendment (ERA) is best understood in context with other great efforts as securing equality before the law for all. But the ERA has also been used as a political tool in efforts to secure electoral advantage. As with most social initiatives, the story offers a complicated mix of high purpose, low tactics, compromise, and for ERA supporters, frustration that extends to this day.
The roots of the ERA trace to 1848, when a group of activist social reformers and abolitionists met in Seneca Falls, New York, to discuss the rights of women. This meeting produced a statement, which among other things called for the elimination of the subjugation of women, voting rights, and absolute equality. But the immediate battle then raging was over slavery, and despite their efforts, women’s rights activists could not broaden the equal rights guarantees of the post-Civil War Amendments to protect women from discrimination as well as African Americans.
But other social reformers saw women’s rights as a tool. Anti-liquor activists believed the women’s vote would support “dry” candidates for state and federal office, and ultimately would secure a constitutional amendment prohibiting the manufacture, transport or sale of alcoholic beverages. A coordinated campaign began around the turn of the 20th century to secure women’s voting rights at the state level, in conjunction with the election of prohibitionist candidates and passage of state prohibition laws. The impact is evident in this timeline – only four states (Wyoming, Colorado, Utah and Idaho) had guaranteed women the right to vote before 1910. Eleven states and the territory of Alaska enacted women’s suffrage laws between 1910 and the ratification of the 19th Amendment in 1920. Twelve more allowed women to vote for President – eleven extending this right in 1917-19, which not coincidentally was the period when both women’s suffrage and Prohibition underwent Constitutional ratification.
In 1923, Alice Paul wrote what became the modern Equal Rights Amendment at a second Seneca Falls meeting commemorating the meeting of 1848. By this time, women had secured the right to vote and had been instrumental in the passage of Prohibition, and understandably women’s rights activists believed it was time to complete a constitutional guarantee of rights for women.
As with suffrage rights, a number of states adopted their own “ERA” type constitutional guarantees. Some state laws were enacted independent of the ERA campaign, but a number of others were adopted during the decade of debate over the ERA when it came before the states in 1972. Most state adopted ERA amendments between 1971 and 1978, when the campaign to adopt the federal Equal Rights Amendment (ERA) was at its height. The effort eventually failed, three states short of its final goal.
Even so, twenty states have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex. Some read like the ERA, but others are narrower. For example California 1879 law (the nation’s earliest), guarantees equal rights to “entering or pursuing a business, profession, vocation, or employment.”
Supporters of ERA continue to argue its necessity, pointing out, among other things, continued pay inequities between men and women. But others argue that a constitutional amendment could be both too broad and ineffective. Larger social phenomena, such as the fact many women raise children, care for other family members, and for other reasons do not follow general male career trajectories go far to explain pay inequities. ERA would bar discrimination based obstacles women face in the workplace, but labor laws, corporate policies, and negotiated conditions of employment already provide existing means to address those.
What laws and practices would ERA abolish? Could there be unintended consequences? Interestingly, labor reformers in the early part of the 20th century thought so. They opposed efforts to abolish discrimination based on sex, because they believed it would jeopardize women’s gains in workplace conditions and hours.
Reasonable laws should recognize that women and men are physically different, and these differences can sometimes matter. Pretending as if there were no differences in life expectancy, strength, metabolism, or estrogen would be irrational, even if in a strict sense “equal.” If our legal regime protects men and women’s choices consistent with the rights of others — recognizing that those choices will not be identical — equality is better served than by imposing a flat guarantee of equal rights.
Allison R. Hayward is a political and ethics attorney in California
June 20, 2012 – Essay #88
Amendment XXVI:
The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
The Twenty-Sixth Amendment: Empowering America’s Youth
Throughout our nation’s history the right to vote has remained a cornerstone of cherished civil liberties and democratic processes. This right, however, was granted to select members of the populace until a century and a half ago. The end of the Civil War brought about 3 “Reconstruction Amendments” aimed to bring constitutionally granted “blessings of liberty” to the black male populace – the 3rd of these, the 15th Amendment, ratified in 1870, granted voting rights regardless of “race, color, or previous condition of servitude.” Half a century later, women were also granted the right to vote, after various organizations staged a protracted series of processions and protests. Several countries, such as Sweden, Finland (then known as the Grand Duchy (Dutch-ee)), Britain and Australia, had already forged ground in this area at the end of the 19th century. The resulting 19th Amendment was ratified in 1920, which prohibited state and federal sex-based voting restrictions. Additional suffrage privileges were granted with ratification of the 24th Amendment in 1964 – which guaranteed that voting rights of citizens
“shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”
Age was the next obstacle to overcome.
The Constitution allowed states to dictate voting qualifications, subject to restrictions incorporated into Amendments. One of these Amendments, the 14th, mandated an age 21 minimum for male suffrage, with the caveat of withholding any state’s representation in Congress should this right be denied. With the onset of World War II, many young men and women under age 21 entered military service, sparking discussions about reducing the voting age to 18. It seemed ironic that one could be called up for military service at 18 and denied the right to vote for the country one was entrusted to defend. So, in 1942, four Congressmen introduced resolutions to reduce the age to 18. Over 150 proposals were initiated, some setting the age to 19. In the early 1950s, Senate debated one of “18” resolutions, but it failed by a vote of 34 to 24. By the late 1960s, the Vietnam War was rapidly escalating and thousands of young Americans enlisted, or, were drafted for active duty overseas. As of 1968, 25% of the troops were under age 21 and made up an even higher percentage of casualties. ‘Old enough to fight, old enough to vote’ became a mantra for the burgeoning Baby Boom generation.
The resolutions for lowering the voting age began to gain momentum once again. Congress held hearings on the subject between 1968 and 1970. These hearings touched on the link between military service and voting, but primarily focused on the increased educational levels of modern youth. Their discussions also focused on the ever-increasing responsibilities of the 18-21 year old demographic: attending college, driving automobiles, drinking alcohol (in subsequent years, states raised this age to 21), holding jobs, starting families, being tried as adults in court. Concurrently, in a narrow 5-4 vote, the United States Supreme Court ruled in Oregon v. Mitchell (1970) that 18 year olds could vote in federal elections, but not in those held at the state, or, local levels.
States now were tasked with evaluating their suffrage-age laws, and sixteen states did just that in 1970. Six states lowered the age and ten remained unswayed. Other states began to weigh administrative and cost advantages in matching the new federal framework. Congress then added a provision to the Voting Rights Act in 1970 setting the minimum voting age to 18 for both national and state elections, arguing it had broad power to protect voting rights under Section 5 of the 14th Amendment. With that, Congress accelerated its commitment to incorporate the youth suffrage movement within the framework of the Constitution. Congress passed the 26th Amendment March 23, 1971. In the fastest ratification process on record (107 days), three fourths of the states ratified this landmark proposal July 1, 1971.
Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.
Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh(Grow), Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.
June 11, 2012
Essay #81
Amendment XXIV:
1: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
2: The Congress shall have power to enforce this article by appropriate legislation.
A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.
In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.
The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.
The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.
Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.
Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.
The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.
When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.
But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.
The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.
Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”
Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.
Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.
A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
June 4, 2012
Essay #76
Amendment XIX:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.
The Nineteenth Amendment
The Nineteenth Amendment prohibits the federal government or state governments from denying individuals the right to vote on the basis of sex. It also grants Congress the power to impose this rule through legislation.
The Constitution introduced in 1787 was a gender-neutral document: It actually did not prohibit women from voting. The Framers gave individual states the power to determine who could participate in elections. All states granted men suffrage. In 1797, though, New Jersey made history by recognizing the right of women to vote. Never before in all of recorded history had women exercised the right to vote.
Because the Constitution did not prohibit women from voting, no constitutional amendment was technically necessary for women to exercise suffrage. This is evident in the variety of strategies that the women’s suffrage movement used to secure the right to vote.
The first strategy involved the interpretation of the Fourteenth Amendment. Section 2 of that amendment prohibited denying “male inhabitants” the right to vote, suggesting that the Constitution granted only men the right to vote. Proponents of women’s suffrage argued that the Citizenship Clause and the Privileges or Immunities Clause of the Fourteenth Amendment prevented states from denying women the right to vote in federal elections. In Minor v. Happersett (1874), however, the Supreme Court dismissed this argument.
The second strategy focused on convincing individual states to remove voting qualifications related to sex. These efforts were eventually quite successful. Wyoming entered the Union in 1890 with women’s suffrage, becoming the first state since New Jersey to allow women to participate in elections on an equal basis with men. By the time the Nineteenth Amendment was ratified, 30 states already granted voting rights to women for members of the House, members of the Senate, or the President.
The third and final strategy involved amending the Constitution to prevent states from imposing sex-based voting qualifications. The first of such amendments was proposed in 1869. In 1897, a California Senator proposed what would become the Nineteenth Amendment. The Amendment was ratified in 1920 with essentially the same wording as the Fifteenth Amendment.
There has been little litigation over the Nineteenth Amendment. The Supreme Court addressed the amendment directly in Breedlove v. Suttles (1937), a case in which Georgia law exempted women from a tax but required men to pay it upon registering to vote. The Court ruled that the amendment protected the right of both men and women to vote but did not limit a state’s authority to tax voters.
Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.
May 18, 2012
Essay #65
Amendment XVIII:
Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section One of the 18th Amendment contains only forty-four words. These few words are intended, however, to introduce a remarkable and clear change in the relationship between the federal government and the individual American citizen. In popular terminology, this section prohibited, and criminalized, what was formerly a matter of taste or culture, namely, the purchase and consumption of alcoholic beverages. But, as we shall see, there is a bit more nuance and ambiguity in this section than what is captured by the common understanding. Language matters and the thoughts behind the words also matter. In addition, sometimes, what isn’t said is as important as what is said.
We can collect the words that are indeed said into five separate but related categories. 1) After one year from the ratification of this article 2) the manufacture, sale, or transportation of intoxicating liquors 3) within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof 4) for beverage purposes 5) is hereby prohibited.
This is the first time that an amendment to the Constitution would not take effect immediately upon receiving the requisite votes of 3/4 of the state legislatures, but at a later designated time. The amendment was ratified on January 16, 1919 and went into effect on January 17, 1920. Why designate a one-year delay? The thought was that one-year would give American business, government, and citizens sufficient time to adjust their life style to a new, and so the proponents thought, improved American way of life.
Americans, for most of their history, however, accepted that the Constitution limited the reach of the federal government to few and defined objects leaving the rest of public policy to state and local governments or to the private sector. The Constitution “enshrined” the rights of the individual and the states over against the federal government in the Bill of Rights, also known as the first ten amendments.
True, the 14th -15th Amendments, passed in light of the civil war, limited, for the first time, what state governments could and could not do. Specifically, no state could deny the civil rights and voting rights of recently freed African Americans. And the 13th Amendment also constitutionally limited what Americans could own: it declared that no American could own another person.
A second feature to Section One of the 18th Amendment, therefore, is that it introduces over 100 years after the Founding amendments, and fifty years from the Civil War amendments, into the very Constitution itself, the proposition that we as individual Americans do not own ourselves with respect to the consumption etc., of certain beverages. Not having a drink is made the moral equivalent of not owning a slave?
The prohibition of alcohol was not a phenomenon at either the Founding or the Civil War. The case for federal, and then constitutional, prohibition grew out of the success of the Temperance Movement. Their appeal to end the evil of drink spread across the various states in the late nineteenth century and into national politics in the early twentieth century. Overwhelming majorities of both political parties in Congress endorsed National Prohibition in 1917. Thus, surprisingly, a formerly politically decentralized and alcohol drinking nation overwhelmingly accepted the Temperance argument that drinking was a moral issue, rather than a matter of personal taste, and that it ought to be constitutionally prohibited.
The fascinating interrelationship between the 16th, 17th, 18th, and 19th Amendments—the so-called Progressive Amendments—is beyond the scope of this essay. But we do need to ask: What is Progressive about Prohibition? Both movements see the “cleaning up” of the American political system, with its “smoked filled rooms,” on the one hand, and reforming public conduct and getting rid of saloons on the other hand, as twin forces in the transformation of America into a better nation.
But, once again, language is important. The clear and purposeful prohibition language covering the importation, exportation, and domestic “manufacture, sale, or transportation” shows the moral side of America. But what is not said in this “mission statement” shows the endurance of entrepreneurial politics in American life. This is the third feature that is important in Section One.
Despite the common interpretation, Section One does NOT prohibit “the purchase and consumption of alcoholic beverages.” The words, “purchase,” “consumption,” and “alcohol,” are not mentioned. What is found there instead is the phrase “intoxicating liquors.” This leaves open to future Congressional debate, and political exemptions, what is “intoxicating” and what are “liquors?” What about “sacramental wine,” and “medicinal alcohol?” Shall they be exempt? After all, the prohibition is “for beverage purposes.” Nor is anything said about eating purposes. This ambiguous language is not accidental; it reflects the persistence of entrepreneurial politics in America.
Professor of Public Policy at Pepperdine University, Dr. Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.
May 16, 2012
Essay #63
Amendment XV:
1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
2: The Congress shall have power to enforce this article by appropriate legislation.
The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26th 1869, and ratified by the States on February 3rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprivedof the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.
It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens. States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners. The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property. A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.
Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.” It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity. The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread. The Nineteenth Amendment. ratified in 1920, had granted women the right to vote. The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971. Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.
The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved. The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.
Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.
May 8, 2012
Essay #57
Amendment XIV, Section 2:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
The end of the Civil War brought radical changes to the United States Constitution. Leaders of the victorious Republican party hoped now to make the principles for which they waged such a punishing war into a permanent part of the Constitution. The Fourteenth Amendment renounced the “states’ rights” theories that so prevalent before the war, by declaring first that all Americans are citizens of the United States first and foremost, and only secondarily of the states where they reside. States had formerly, enjoyed authority to determine both state and federal citizenship; now the nation would determine both. Second, the Amendment prohibited states from depriving Americans of their “privileges or immunities”—i.e., of the rights that belong to all Americans—or of equal protection of the law, or of life, liberty or property without due process of law. These new guarantees ensured that the theory of “paramount national citizenship,” for decades the backbone of the Republican anti-slavery crusade, would be enshrined forever in the nation’s highest law.
But the Amendment was not concerned only with these crucial abstract principles. It was also a matter of practical politics. The second section of the Amendment—pointing toward the future Fifteenth Amendment—punished any state that deprived people of the right to vote. Southern states, after all, could be expected to take steps to bar their former slaves—now citizens—from exercising their new rights as citizenship. Rather than banning such interference outright, as the Fifteenth Amendment would do, this provision declares that if a state deprives “any of the male inhabitants” who are 21 or older from voting in a federal or state election, that state will lose seats in the House of Representatives.
This provision that overrode the Constitution’s infamous “three-fifths” clause, whereby Congress was apportioned on the basis of the white populace along with “three-fifths” of the slaves, and it marked the first steps toward a democracy in which all races could participate. Of course, there was also a steely political reality behind Congress’s choice of language: if southern states were restored to the union, and apportioned Congressmen on the direct basis of population, the Republicans might soon find themselves outvoted in Congress, destroying their unique opportunity for constitutional reform. Thus the Amendment permitted states to deprive people of the right to vote on account of their having “participat[ed] in rebellion, or other crime.”
The inclusion of the world “male” was also a calculated political move, and it also sparked a clash among the Amendment’s friends. Never before had the U.S. Constitution conditioned the right to vote on sex, and in fact, at the time the Constitution was originally ratified, some states allowed women to vote. But no state allowed women to vote in 1868, and had the Amendment been written in language that included female suffrage, the proposal would have faced far more opposition within the Northern political coalition. But adding a provision that explicitly allowed states to disenfranchise women put the nation’s imprimatur on discrimination, and offended many of the same female activists who had helped lead the Abolitionist movement. Some of them—including Elizabeth Cady Stanton and Susan B. Anthony—now opposed any guarantee of voting rights that was not gender-neutral. The former slave Frederick Douglass was more pragmatic. He believed strongly in women’s suffrage, but that was a goal for another day. “Woman has a thousand ways to attach herself to the governing power of the land and already exerts an honorable influence on the course of legislation.” But “the Negro is mobbed, beaten, shot, stabbed, hanged, burnt, and is the target of all that is malignant in the North and all that is murderous in the south.”
Although section 2 was largely rendered obsolete by the Fifteenth and Nineteenth Amendments—which barred states from discriminating on the basis of race or sex when it comes to the right to vote—it has still played an important role in shaping the power of states to deprive certain groups of voting rights. In a 1974 case, the Supreme Court ruled that states may disenfranchise felons, pointing out that the Fourteenth Amendment explicitly allowed this. And in 1970, Justice John Marshall Harlan, whose grandfather had been the lone dissenter in Plessy v. Ferguson, relied partly on the language of section 2 to conclude that the Fourteenth Amendment did not allow Congress to interfere with a state’s power to determine voter qualifications.
That the Amendment’s language regarding the right to vote was so quickly superseded by the Fifteenth Amendment should come as no surprise. The Fourteenth Amendment was just one step in a long-overdue effort to make the Declaration of Independence’s promise of equal liberty a reality for all.
Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).
Tuesday, May 1, 2012
Essay # 52
Amendment XXVI
1: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
2: The Congress shall have the power to enforce this article by appropriate legislation.
The final (or, more accurately, most recent) amendment to the US Constitution is the 26th. It lowered the national voting age from 21 to 18 years of age.
The founders initially left it up to the several states to determine various eligibility requirements for voting. But following nearly a century of reform, including the passage of the 19th Amendment ensuring suffrage for women and various civil rights laws operating under the auspices of the 14th amendment, national leaders began to grapple with pressure to lower the overall voting age nationally from the generally-accepted 21 to 18.
President Eisenhower was the first chief executive to publicly support such a move, but Congress’ attempts to nationally require states to do so were met with constitutional opposition from the Supreme Court. The High Court found that Congress had exceeded its authority under the Constitution, and that amending the Constitution would be required.
Contrary to popular belief, it wasn’t simply the anti-war movement that was pressuring national leaders to lower the voting age. Young adults from all walks of life, who had already assumed the full mantle of adulthood (marriage, children, sole self-support, etc), were eager to ensure that they had a voice in public policy. But it was the anti-war movement that captured the popular sentiment, with the concept that “if I’m old enough to be drafted to fight for my country, I ought to be able to vote those policies facing my country.”
The issue of the draft isn’t a small one, either. The fact that young men were facing the possibility of involuntarily putting themselves in harm’s way is a compelling justification for allowing these same young men a voice in their own futures.
By 1971, the White House had become a champion of the push to lower the voting age as well—which, given the ire the anti-war movement felt towards the Nixon administration, was nothing short of ironic. In fact, in one of the oddest instances of changing places, The New York Times, incapable of seeing anything good coming from the Nixon White House, came out in opposition to the lowered voting age—stating that young people were simply too immature intellectually to be good voters.
But the proposed amendment did pass Congress, and Nixon signed it in March of 1971. The amendment rocketed through state legislatures, and by July 1 it had been ratified.
The force and effect, however, has been somewhat limited. Rates of voting for the 18-21 year old segment of the population was at its highest for the 1972 election. After that, even considering important contributions in the 1984, 1996, and 2008 Presidential elections, voter turnout among this demographic has remained tremendously low. Despite this fact, there are some calling for lowering the voting age even more—to 16![1]
It is doubtful that this will happen, given a host of factors—including one trend that has run parallel through the 40 year history of the under-21 vote.
While there may have been some justification in the late-1960s and early-1970s for lowering the age due to the factors facing a disenfranchised segment of the population, those factors have continued to shift. Not only do we have an all-volunteer military, wherein nobody is forced to join without their own-free choice, but the age we consider “adult” today continues to increase.
Currently, for instance, we have the greatest percentage of individuals under 30 living in their parents’ homes. Few have families, fewer own homes. It has become acceptable to consider adolescence to extend well-beyond age 18, and some believe it to extend beyond 30 years of age!
This belief became enshrined now in federal public policy as well. One of the central issues in Obamacare is the mandate to health insurance companies that they allow parents to put their children on their insurance plans up to the age of 26. I believe such a consideration would have been unthinkable in the era when the 26th Amendment was being considered.
Nobody is suggesting that the voting age be raised again—though many believe that young people do squander their franchise rights. What is certain is that the 26th Amendment is illustrative of the idea that pressing issues of the day ought not drive the amendment process. Rarely does such tinkering with the founders’ vision produce the results that we want.
[1] This organization, the American Youth Rights Association, believes that voter turnout will increase, and that because young people may retain better knowledge of historical facts than the general population, that they will be a more informed segment of the voting electorate.
Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/
Amendment XXIV
1: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
2: The Congress shall have power to enforce this article by appropriate legislation.
A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.
In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.
The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.
The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.
Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.
Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.
The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.
When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.
But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.
The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.
Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”
Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.
Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.
A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
Amendment XIX
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.
It is hard to imagine that only 90 years ago, one half of the population of the United States could not vote because of their gender. But the passage of the Nineteenth Amendment in 1920 mandated that states could no longer deny women this fundamental right. It was named the Susan B Anthony Amendment, after the foremost leader for women’s suffrage.
On that first Election Day, November 2, 1920, single and married women, young and old, exercised a right they had fought for in their homes and churches, in town halls, and on the streets. Polling places swelled almost beyond capacity with voters who had never before done such a thing. Mothers, daughters, sisters, and aunts proud and eager, rushed to their polling location as early in the morning as possible, as if vying for the front row seat at the theater. Flustered by the idea of a secret ballot, one woman thought she needed to sign the back of the card. Others carried their groceries on their hips, maneuvering the crowds and chatting enthusiastically over screaming children.
The New York Times reported that while approximately one in three women, who were eligible, voted, more women than men actually voted in some districts. The Chicago Tribune credited Republican Harding’s landslide victory to the woman’s vote.
Unlike some other amendments to the constitution, the 19th Amendment was hard fought. For instance, the 26th Amendment passed in 1971, which granted the right to vote for citizens 18 years of age, took only 3 months and 8 days to be ratified. As a matter of fact, of the 27 amendments to the Constitution, 7 took only 1 year or less to become the law of the land.
However, women struggled for72 years to pass the Nineteenth Amendment. Anti suffrage organizations were most popular in the New England states. Opponents claimed that the female brain was of inferior size. Others claimed that women did not possess a soul. Humorous postcards portrayed women taking too long to get all their petticoats on to get to the polls. Some newspaper editorials said that women would only vote the way their husbands told them to anyway.
But even the movement that supported votes for women was ripe with internal dissention. The passage of the 15th Amendment, giving the Negro the right to vote in 1869, caused a 20 year split in the women’s movement. Some felt that Negro suffrage should only be passed if it also gave women suffrage. Others felt that the country was not prepared to enfranchise both and therefore women had to take a back seat.
Did the rights of the Negro have to diminish the rights of women, black and white?
That question was also being asked about women’s rights as it related to motherhood and family life. Would freeing women to participate in government put at risk the care of children? In other words, could the rights of all coexist?
Against this backdrop, suffrage leaders took seriously these portrayals of power and domination by their gender. They exercised their greatest skill in combating this perception put forth by their opponents that they would abandon their children. Nowhere was this made more apparent than in their opposition to ‘Restellism,’ the term given to abortion, the most heinous form of child abandonment. It was named after the infamous abortionist Madame Restell, frequently arrested and discussed in Susan B Anthony’s publication The Revolution. Suffrage leaders saw opposition to ‘ante-natal murder’ and ‘foeticide’ as an opportunity to clear their name of unfair accusations against them by anti-vice squads, who believed the decadence of the Victorian Era lay at women’s independence.
But opposing abortion was more than a political strategy. It was support for a human right, a right that was integral to their own. The organizer of the first women’s rights convention in 1848, Elizabeth Cady Stanton, made these connections in a letter to suffrage leader Julia Ward Howe. Howe believed war was the enemy of women because it destroyed their sons and husbands and brothers. Stanton made this same death connection with mothers who destroyed their children: “When we consider that women are deemed the property of men, it is degrading that we should consider our children as property to destroy as we see fit.”
Not only were anti-suffrage crusaders misinformed about the care for children that was integral to the suffrage agenda, they misunderstood that women wanted the vote not so much for their own self aggrandizement but for ‘life over material wealth’ or for the good of families and children. Child labor laws, poverty, and universal education were issues for which they sought the vote. They sought the vote for themselves because they were mothers who knew the needs of everychild. It was their maternity that they saw as their greatest gift of citizenship. As political artist J Montgomery Flagg’s winning 1913 poster proclaimed, Mothers bring all voters into the world.
Susan B Anthony did not live to see the passage of the Amendment that was named for her life’s work. A radical young new woman leader, Alice Paul, was jailed with 66 colleagues for their protest at an event honoring President Wilson and the US participation in World War I. This sparked the nation’s awakening and compassion, but more importantly, weakened the President’s opposition to the justice they demanded.
Paul created a flag with the suffrage colors: gold for the sunflower of Kansas (an early state to grant women suffrage), white for purity, and purple for eminence. She sewed on it a star for each state that ratified the Amendment. Only one more state was needed, and on August 18, 1920, Paul received a telegram proclaiming the ‘yes’ vote by the Legislature of the State of Tennessee. Paul draped the flag over a balcony in Washington DC. Women now could exercise the right to shape and determine the course of history.
Resources:
· Boston Daily Globe, Nov. 3, 1920
· NY Times, December 19, 1920
· Chicago Daily Tribune, Nov. 3, 1920
· Archive collection, Susan B Anthony Birthplace, Adams, MA
Carol Crossed is the Owner and President of the Susan B Anthony Birthplace Museum in Adams, Massachusetts.
Amendment XV
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26th 1869, and ratified by the States on February 3rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprived of the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.
It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens. States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners. The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property. A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.
Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.” It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity. The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread. The Nineteenth Amendment. ratified in 1920, had granted women the right to vote. The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971. Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.
The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved. The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.
Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st. In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.
The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states. When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government. As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”[1]
What was envisioned was a system of “dual sovereigns,” separate, but (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people. In other words, power flows from the people to the government, and as the High Court said 70 years ago: “The amendment states but a truism that all is retained which has not been surrendered.”[2]
Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades. It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted. They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation. In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:
[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.[3]
How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?
Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government. There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own. Moreover, it removes policy prioritization an additional level away from an impacted population.
Again, as the High Court said in New York v. United States:
States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.[4]
Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court. In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”. The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own. The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.
In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true. But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated. When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment: government does not have rights. People have rights. Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights. All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.
[1] New York v. United States, Coleman v Thompson, etc
[2] United States v. Darby, 312 US 100, 124 (1941)
[3] New York v. United States, 505 US 144 (1992)
[4] Ibid.
Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/
Great discussion today – loved seeing some new names blogging! Remember to invite your friends to join the conversation – and share this with your children! Encourage them to enter our We The People 9.17 Contest – sign up online ASAP – entries due July 4! Tell high school students we especially need short films, PSA’s and we are asking middle schoolers and high schoolers to compose cool songs! Students can enter in teams of two for the songs, short films and PSA’s. Sign up today!
Tackling the Bill of Rights, and the Amendments in one day was a big job! As I read through the Amendments, I wondered about the efforts and battles that must have gone into the passage of each. Reading through the Amendments is like a quick reading of the history of our country. The Amendments reflect the times and current events in the eras in which they were passed. We can be proud as Americans that MOST of the Amendments reflect the founding fathers’ principles. (see today’s and yesterday’s blog for lively discussion on some such as the 16th and 17th which many feel do not!)
All of the Amendments have fascinating stories that accompany their passage. We all know of the stories and have seen photos of the women’s suffrage movement, for example. That battle spanned 50 years before Congress approved the 19th Amendment in 1919 and 3/4 of the States ratified it in 1920. But there is an interesting back story to the passage of the 19th Amendment that I love. In August of 1920 Tennessee was the final state needed to achieve ratification of the 19th Amendment. The vote in the Tennessee Legislature came down to a young State Representative, Harry Burn, who represented a district bitterly divided on the issue, and who was facing re-election that fall. Representative Burn had voted previously with the Anti-Amendment forces. The vote was tied 48-48, and Harry was expected to vote with those opposing the Amendment again. But Harry carried a letter from his mother in his breast pocket, admonishing him “Don’t forget to be a good boy,” and vote for the Amendment. Harry surprised everyone by voting yes, and thus on August 18, 1920 Tennessee became the 36th State to ratify the 19th Amendment, and one young 24 year old man empowered millions of women in our country with his brave vote.
Earlier today Rich asked an interesting question about how the 17th Amendment came to be passed, so I pulled two books off my shelf that I recommend to anyone who is interested in the stories and history of the Amendments, the Bill of Rights, and the Constitution:
Seth Lipsky’s The Citizen’s Constitution: An Annotated Guide (2009) and the Heritage Foundation’s Guide to the Constitution, edited by Ed Meese, Mathew Spalding and David Forte (2005).
Upon reading about the 17th Amendment’s history in both of the above sources, I found it was passed in reaction to many State legislatures which were deadlocked on the issue of choosing a U.S. Senator, thus leaving their states without representation in the U.S. Senate. The 17th Amendment was passed in the name of enhancing Democracy, yet many feel it has been detrimental to protecting States’ rights, expanding the federal government’s reach.
To me, the most important Amendments to our Constitution were the 13th, 14th and 15th Amendments, which abolished slavery, established citizenship for former slaves, and prohibited restrictions on the right to vote based on color, race or previous condition of servitude. President Lincoln received pressure from those who thought the 13th Amendment should be ratified only by the Northern States, in order to get it done quickly. But Lincoln favored 3/4 ratification of the 13th Amendment by all the States, so the Amendment’s legitimacy could not be challenged. He also believed the ratification process in the Southern States was important to Reconstruction and healing. Regarding the 14th Amendment, Seth Lipsky writes, “Were the Amendments musical compositions, the fourteenth would be the grand symphony in four movements, full of exciting themes, varied movements, and clashing symbols….” Indeed the 14th did much more than overturn the Dred Scott decision and extend citizenship to former slaves, it contains the State Action, Privileges or Immunities, Due Process and Equal Protection Clauses, as well as Section Two, Apportionment of Representatives. The 15th Amendment, the last of the Amendments dealing with Reconstruction, prohibited voting discrimination for former slaves, and any voting discrimination based on race and color. These three Amendments set the stage for the healing of our country.
It is another testament to the beauty of our Constitution that the Amendments read like a short hand version of the history of the United States. It is all there, from the the 11th Amendment stemming from States being held accountable for their Revolutionary War Debts, to the 27th Amendment restricting congressional pay raises from taking effect until after an election. Interestingly the 27th Amendment was first proposed in 1789 and finally ratifed in 1992!
What will our next Amendment be? Let us pray it will reflect the founding fathers’ principles as so many of our great Amendments have. The only thing that is certain, though is that fascinating stories and struggles will accompany its passage, and it will add to the historical narrative of our country which is embodied in the United States Constitution.
April 27, 2010
Posted in Constitutional Essays by Cathy, The Amendments to the United States Constitution | 7 Comments »
Susan says:We were trying to place the amendments in the context of history by guessing what was going on at the time they were enacted without peeking at the date. Amazingly, we were pretty close.
Mary Lou Leddy says:I want to thank bothCathy and Janine for their blogs on the amendments today. As I have never studied theConstitution, Bill of Rights and the amendments in great detail before ; I must admit it can be very challenging to understand; but your blogs as well as the essays of the guest bloggers have made some things much clearer. Thank you again. I look forward to continuing this great study
Pam says:I have been trying to get an answer to this question for about a month. In regards to illegal aliens, George Wills wrote an article stating that our policy of granting citizenship to children born in this country to illegal aliens is a misapplication of the 14th Amendment. That it does not apply to illegal immigrants, because at the time it was written, there were no restrictions on immigration.
As far as I know, we are the only country that has this policy. Right now (to quote George) the best thing a poor person of any country can do for their children is to have them here. I think that changing our policy in regards to children of illegals would go a long way to stop the flood. Any comments?
Susan Craig says:My understanding of the whys and wherefores of the 14th was to clarify the citizenship status of the newly emancipated slaves after the Civil War and its intention was never for transient immigrants who wish to anchor themselves here with all the privileges but not necessarily the duties.
Sandra Rodas says:I realize that to keep with the 90 day format, it was necessary to have all the amendments be covered in one day, but it sure would be nice to look at each in a little more depth. Maybe when the 90 day challenge is over, we could revisit them one at a time on the blog.
Martin says:With regard to the 14th Amendment. Those who would reinvent the Constitution as a document of positive rights versus a document of negative rights have sought to contort the “privileges and immunities” clause to meet their ends.
Basically, the Constitution is written as a set of guarantees limiting what government actually has the power to do and in fact, limiting what it can do to it’s citizenry. There is a movement under way to redefine government in terms of what it must do for its people.
The Slaughter supreme court decisions (right after the Civil War) have defined this narrowly to apply to the states, guaranteeing that the federal government supersedes state governments only in the realm of guaranteed protections specified by the Bill of Rights.
The folks who promulgate the concept of the Constitution as a “living” document want to overturn this precedent so that more “rights” can be forced down over the objections of the states. These new “rights” would be things like – housing, guaranteed employment, health care, and guaranteed access to the political process. By defining them as obligations or entitlements, the government would have to take steps to ensure that they are fulfilled. This would necessarily entail funding and enforcement.
The movement doing this is called the Constitution 2020 movement.
Hillsdale College recently produced a paper documenting their efforts. I’ve written a synopsis at whatwhouldthefoundersthink.com, where I’ve included links to this paper as well links to some of this groups writings.
Kirk John Larson says:Greetings and Salutations,
I wish to address certain issues. The 17th Amendment and the 2020 Movement.
Cathy pointed out that some have argued that the 17th Amendment hurt States rights, and it did. In passing that amendment, State Governments no longer have true representation in Washington. As a result, the Federal government has infringed upon States issues by mandating how the States spends its tax revenues and what laws to pass lest the Federal government would suspend funding as a form of punishment over the states. This practice works to diminish the role and need for State Governments at all. This has been the plan by progressives since 1913. More over, by stripping the State Governments of authority, the Public role in governance and more over the publics ability to self govern is also eroded.
As for the Constitution 2020 movement; this effort to impose ‘new rights’ is not to say our rights have been lost or confused but to say that the US Government is the sole granter of “Rights.” This is a secular push toward a more socialized society where in the Government defines and prescribes where you live, how you live, and whether or not you live.
Housing is a replaceable commodity, (Just ask any tornado.) Employment is a personal choice and on occasion deniable due to the lack of employers. Ultimately, the “Right to Employment” is to destroy the Entrepreneurial Spirit of America. Health Care is a personal responsibility. The effort hear is ultimately establish euthanasia as a legal recourse. Then there is guaranteed access to political process, which is an intent to eradicate responsibility. Today, under the law, criminal conduct suspends your rights to vote or participate in the political process such as serving as a representative in congress. (either house) The idea the progressives have here is Americans should be free from responsibility and consequences for their actions. This is intended to bring more freedom but will actually encourage chaos. As a result, the very idea actually produces the opposite affect as the public cannot be trusted to conduct themselves responsibly, so totalitarian rules must be imposed. The two step process bring greater freedom from responsibility and consequences is to eliminate freedom altogether.
The left will argue to the contrary but the truth is; the absence of responsibility produces chaos and public endangerment.
Socialism has failed time and again. It will always fail because it dehumanizes the people into little more than cattle to be processed.